By Lou Reiter, LLRMI Co-Director and Director of the Public Safety Internal Affairs Institute
The U.S. Supreme Court and the other Federal courts have been good to law enforcement. Their decisions have saved local police jurisdictions a lot of money when cases are dismissed for a variety of legal reasons; most don’t survive the critical review by these courts. But these cases have done little to safeguard officers and the subjects they encounter during police activities. Law enforcement agencies that rely only on state law protections and caselaw guidance in the development of policy and training are doing a disservice to their police officers, subjects being confronted by the officers, and the community it serves.
Let me illustrate with a recent case. The [1]5th Circuit in Harmon, et al., v. City of Arlington, et al. dismissed the case by granting Officer Tran qualified immunity and dismissing City liability. The initial stop was for an expired registration tag. The initial officer told the driver and passenger that he smelled marijuana coming from the large SUV and it would have to be searched. Officer Tran arrived on the scene and began talking with the men in the SUV and then, from the court record:
“After some small talk, Terry started raising the windows and reaching for the ignition. Tran immediately shouted, “hey, hey, hey, hey,” clambered onto the running board of the SUV, and grabbed the passenger window with his left hand. Tran reached through the passenger window with his right hand and yelled “hey, stop.” Tran retracted his right hand and rested it on his holstered pistol. Then Terry fired the ignition and shifted into drive. Just after the car lurched forward, Tran drew his weapon, stuck it through the window past Harmon’s face, and shot 5 rounds, striking Terry four times (who died from these injuries).”
This incident occurred in 2018. Shortly after the shooting incident, the city terminated Officer Tran. In 2020 the local prosecutor indicted Tran for “negligent homicide.”
What Officer Tran did in this incident may be “unsettled law” by the 5th Circuit and the U.S. Supreme Court in recent years dealing with police vehicle shootings[2], it isn’t “unsettled” within the law enforcement industry. It’s just stupid field tactics that have been “settled” by law enforcement since the 1980s and Officer Tran violated “well settled” police training. It’s one of many police shooting cases that are “legal, but awful.”
The written policy of a police agency is allowed to be more restrictive than state law or Constitutional caselaw. It’s a wise choice for an agency to ensure that its officers stay afoul from criminal prosecution or civil liability. But the more important reason for a more restrictive written policy is that it provides the agency to be responsive to changing community expectations and gives the agency the foundation to hold its officers accountable for their actions that might be legal but are violations of workplace rules and training.
I have written and opined about high-risk vehicle approach tactics, a common and critical field police task. “High-risk vehicle stops were called “felony stops” prior to the 1980s. The term “high risk” became more descriptive for police work.[3] A non-violent felony alone may not warrant such a police tactic, while a stop without any indication of any crime might justify such a stop procedure. These are common encounters in police work. They are the subject of police training. These principles are also documented in numerous police texts, police periodical articles, and police training lesson plans…These police high-risk vehicle tactics are designed to protect the involved police officers, as well as the subjects who are being stopped by the police. The essential elements are that officers are trained to expect that subjects being stopped during a high-risk vehicle stop should be assumed to be armed and assumed that they may react erratically. Police officers are trained to remain behind their vehicles and not approach the subject and his/her vehicle until that vehicle is not operational.[4] Officers are trained to be methodical in their approach to this tactic. It requires the officers to remain in a position of advantage with reasonable cover for protection, normally the police vehicle. The subjects are then commanded to turn off the vehicle and eliminate the keys from the vehicle. The extraction of the subjects from the vehicle is then a methodical process of verbal commands, subject placement, and eventual control.
“When these tactics are consciously disregarded, they more often than not result in police misconduct and/or improper uses of force and equipment. These often result after police pursuits, even more so after a long police pursuit. That is the reason police agency procedures require a supervisor to monitor and, if possible, respond to the conclusion of all pursuits. Police officers engaging in these pursuits become intense in the necessity to apprehend the subject. “When the subject stops, the officers rush to the vehicle disregarding their training in high-risk vehicle approaches. This causes two (2) significant problems in effective and safe subject control. The officers consciously place themselves in positions of disadvantage. This can cause them to react precipitously, misperceive the actions of the subject or resort to the use of unreasonable force. The actions of the officers also can cause the subject to become agitated and react contrary to reasonable control. This subject action could be unexplained physical movements or sudden movement of the vehicle. These can often result in misinterpretation by officers who then resort to use of deadly force.”
Yet just about every week we see violations of these common police tactics. Officers and subjects are being injured and killed.
Today there exists a wide gap between the guidance and recommendations of leading law enforcement professional organizations on many potential misconduct areas, but most significantly on the use of force. The IACP relies on its “National Consensus Policy and Discussion Paper on the Use of Force” initially published in 2017 and updated in 2020. While the Discussion Paper is extensive in addressing the myriad of issues involved, the Model Policy represents the approach of relying on legal and caselaw aspects rather than broader policy and training. PERF in its “Use of Firearms Policy” in 1999 takes a broader view, “Regardless of state law restrictions on police use of deadly force, police departments retain the option of placing tighter restrictions on their own officers. Moreover, available evidence suggests that the establishment of a policy emphasizing respect for the sanctity of human life reduces shootings without negative effects on law enforcement or public safety.”
State laws and Constitutional caselaw have not produced the life-saving training and tactics that agency critical examination of each use of force incident has. Consider some of these developments that law enforcement has initiated despite the absence of guidance from laws and caselaw:
- SWAT type units and tactics
- CERT and similar detention facility tactics
- Disengagement on some suicidal calls
- Less than lethal weaponry
- Computer assisted and virtual firearms training systems
- High-risk vehicle approach tactics
- Active shooter tactics
- Suicide by cop encounters
- Vehicle and foot pursuit policies and training
- Duty to intervene training
- De-escalation training
- Psychological debriefing of those directly involved in critical incidents
- Employee wellness programs
Issues involving police use of force are only one of the employee misconduct areas that have not been adequately affected by state law and Constitutional caselaw. Law enforcement has learned from its own critical analysis of incidents that might be legal but awful. State law and Constitutional caselaw isn’t adequate and have never been. Consider all the developments that have been made by police agency critical analysis over the years to keep officers, subjects being encountered, and the public safe during tense field encounters. Of course, there are other misconduct areas that still need to be addressed by law enforcement agencies.
- Handling of the mentally ill, persons of diminished capacity, and suicide by cop encounters. Law enforcement has had training on these subjects beginning in the 1950s. It was law enforcement that identified the issue of ‘suicide by cop’ and developed training to attempt to minimize the fatal outcome. Law enforcement recently has teamed up again with mental health professionals to provide on-site responses to calls involving persons of diminished capacity responding to the increase of community concerns. The courts, including the U.S. Supreme Court, have not provided any specific, reasonable alternatives for law enforcement in cases involving the mentally ill other than was the force used ‘objectively reasonable’ when applied. In Sheehan[5] the U.S. Supreme Court had the opportunity, but it elected to punt, not address the issue, and decide only on the use of force issue.
- The use of neck restraint control holds by law enforcement became an issue of concern within advocacy groups in the 1970s. Law enforcement, on its own, changed from a straight bar-arm control to the lateral vascular neck restraint hold. The City of Los Angeles v. Lyons case sought to order injunctive relief against using this hold. In 1983 the U.S. Court struck down that injunctive relief. There are few court decisions that have decided issues of specific tools, tactics, or training mandates for law enforcement. Even after that U.S. Supreme Court decision, the Los Angeles Police Commission elevated the use of a neck restraint hold to just under deadly force. Since that case, most law enforcement has done to same or outright eliminated the neck restraint hold. Only since the George Floyd incident in 2020 have some states legislated the elimination of the neck restraint hold.
- Since the national protests following the George Floyd incident in 2020 some local jurisdictions have politically imposed restrictions on the use of some police riot control tactics involving weapons and chemical agents. But these have been at the forefront following the WTO Seattle demonstrations (1999), the Occupy Movement (2008), and the MacArthur Park May Day incident in Los Angeles (2007). Again, few court decisions have had a direct impact on what tactics and tools the police use during these demonstration control encounters.
- Public safety officers aren’t immune from domestic related incidents. State law whether it’s called domestic or family violence frequently doesn’t solve the underlying employee problems. Most of the time the victim refuses to cooperate with the criminal and prosecution aspects, or the case is lowered to some legal consequence that now isn’t violence related or not deemed a conviction. But a well-written policy can allow the agency to get the necessary help to the involved persons and discipline, when necessary, despite the state law issues. In most cases, the domestic related incident is simply the tip of the employee’s problems that can be addressed in the administrative setting.
- Police sexual misconduct cases may rise to criminal prosecution for rape, sexual assault, or stalking. But those are the exception to the on-going police sexual misconduct problem. Most don’t reach that criminal level that the prosecutor seeks, or the victim is reluctant to go through the criminal process. Fortunately for agencies, the courts are reluctant to hold them accountable in civil court unless there can be shown that supervisors had direct knowledge of the sexual misconduct and chose not to do anything about it. Yet, few police agencies still don’t have a written policy or provisions for an administrative no-contact order that adequately covers sexual misconduct. Every reasonable police agency should know that the potential for some form of sexual misconduct internally or externally exists. Failure to address this issue with a reasonable written policy, specific training, and strong discipline will adversely affect the agency, employees, and the community.
So, in the end, what does all this mean? It means we in law enforcement can solve our own problems, but often we don’t or won’t. Laws and Constitutional caselaw might identify some of our warts or areas that need improvement, but those are usually delayed and knee-jerk reactions and rarely offer any specific tactical and training guidance. Written policy, training, supervision, critical analysis of force and misconduct incidents, and employee discipline can change agency culture and produce a police agency that can effectively serve its individual and diverse community.
Legal and Liability Risk Management Institute (LLRMI) provides consultant services to agencies that are creating or improving their written policies. Our team members ensure that the policies meet your agency and community needs while still adhering to ‘best practices’ and your specific state requirements.
[1] Harmon, et al., v. City of Arlington, et al.; 20-10830 (5th Circ. 2021)
[2] Scott v. Harris (2007); Brosseau v. Haugen (2004); Plumhoff v. Richard (2014); and Mullennix v. Luna (2015)
[3] While many police agencies trained in this essential field tactic prior to the mid 1970’s, law enforcement was forced to re-examine its training following the tragic shooting deaths of four (4) California Highway Patrol officer in 1974 in Newhall, CA. This resulted in the series of police training videos produced by Motorola followed by the excellent materials of Calibre Press in Northbrook, IL. This training organization in the past reaches approximately 30,000 police officers each year during its “Street Survival” seminars.
[4] In the leading and generally considered most authoritative tactical texts, Street Survival: Tactics for Armed Encounters (1980 initial printing) and The Tactical Edge Risk Patrol (1986 initial printing), both by Calibre Press. In the latter on page 316 it is referenced, “One of the few absolutes in officer survival applies to high-risk stops: never EVER approach an occupied vehicle.”
[5] Sheehan v. City/County of San Francisco (2014) the issue dealt with a diagnosed mentally ill patient in a designated group home. The policy and training of San Francisco Police was detailed, specific and met the standards of CA. POST. The officers violated those policy and training criteria. The Court had the opportunity to address whether knowledge of mental illness should be considered by officers during their decisions to use deadly force, but the Court elected not to address that issue.
